Wednesday, January 30, 2013

Substance versus Procedure

Posted by Sherry F. Colb

In my Verdict column for this week, I discuss Evans v. Michigan, a Double Jeopardy case pending in the U.S. Supreme Court.  The issue in Evans is whether the Fifth Amendment right against being tried more than once for the same crime precludes retrial when a judge, after the close of the State's evidence, grants the defendant's motion for a directed verdict on the basis of the judge's having mistakenly added an additional, non-existent element to the crime to be proved.  In my column, I discuss the issue in Evans in the light of the Court's decision in Blueford v. Arkansas last term.

In this post, I want to consider the larger question of whether substance is more or less important to a just system than is process.  The Double Jeopardy Clause provides a primarily process-oriented right to criminal defendants, although it may serve substantive values, as I suggest in my column, by preventing an oppressive government agent from repeatedly ignoring proper acquittals until a convicting jury provides the "desired" guilty verdict.  The trial itself is a procedural mechanism, but the goal is much more straightforwardly substantive -- to find out the truth of what occurred so that the guilty may be punished, while the innocent are spared.

The criminal trial is not, however, exclusively concerned about the truth.  For one thing, the heavy burden that is constitutionally placed on the government's shoulders reflects a willingness to tolerate inaccuracy in the form of acquittal of many guilty people in the service of minimizing the risk of convicting one innocent person.  More directly threatening to the truth are evidentiary privileges that keep reliable, relevant evidence from the fact-finder, to serve some extrinsic interest (such as protecting the sanctity and security of private marital communications) and exclusionary criminal procedure rules (such as the Fourth Amendment exclusionary rule).  Despite these compromises, however, we would not necessarily say that the trial itself de-prioritizes truth, but only that other values make their way into a process that is itself primarily concerned with uncovering the truth about whether the defendant did or did not commit the crime charged.

I sometimes wonder, though, whether even that much is accurate.  The trial is, as a fact-finding procedure, surely superior to old practices such as trial by ordeal.  But is it all about learning the truth?  Years ago, Professor Dorf asked his constitutional law students the following question:  if you could replace trial by jury with a machine that could tell us, with 99.999% certainty, whether or not the defendant is guilty, would you do it?  My recollection (admittedly hearsay, another problem in a trial setting) is that many, if not most, students rejected the machine in favor of the jury, notwithstanding the acknowledged fact that juries are not nearly as accurate as the hypothetical machine.  For those students (and perhaps for some readers), the trial is preferable to even a more-accurate device for finding out the truth.  But how could that be?

One possibility is that students were "fighting the hypo" and imagining that the device wasn't really as accurate as stipulated, and that if this were so, it would be nearly impossible to know about the flaw because the device is, by definition, opaque.  If students had truly believed in the accuracy of the device, perhaps they would have come out the other way.

On the other hand, because the jury deliberates in private, we don't really know in any case (or, for that matter, in the run of cases), whether juries are getting things right.  We have some sobering evidence suggesting they are not, in the form of DNA exonerations, sometimes many years after eye-witness identifications led to convictions.  The absolute preference for juries therefore does seem to prioritize something over the accuracy of outcomes, but what?

I would tentatively identify the "something" as the individual's access to a process in which a group of presumptively uncorrupted individuals who take their job seriously and who themselves could some day be subject to the same process listen to everyone involved (including the defendant, if he or she chooses to testify) and comes to an unbiased conclusion after deliberation.  There is something familiar and comforting about the jury process, particularly when compared to a foreign-looking device.  For society at large, it "feels better" to have juries deciding guilt and innocence, much in the way that it might feel better to talk to an actual person, rather than a computer robot, when calling a business on the telephone, quite apart from relative efficiency and efficacy.

If I am right about this assessment, however, then there is at least one problem.  The innocent person on trial for a crime would probably choose the most accurate fact-finding device rather than risk having a human jury make a mistake.  To the extent that many of us prefer a jury, then, even with the accuracy stipulation, I worry that it is because the jury makes us feel good as spectators to criminal justice, regardless of its potential inferiority as a truth-seeking device for innocent defendants.  In other words, I wonder whether a preference for process over substance in this context (and maybe in others) does more for the perceived legitimacy of the system (and the comfort with which those who confidently predict they will never fall prey to it) than it does for its efficacy in protecting the innocent from falsely being convicted.  In that sense, perhaps, the trial of today does bear some resemblance to trials by ordeal of yesteryear.